Supreme Court Reaffirms The Legal Principle On 'Introduction of New Evidence' on Second Appeals.

On Thursday Last week, (7th October 2021), The Supreme Court of Uganda in The case of Makubuya Enock William T/a Polly Post v. UMEME (Civil appeal No.9 of 2019) reaffirmed itself on the legal principle that states that of Introduction of New Evidence in Second Appeals will not be admitted, unless it was not available to the party seeking to use it at the trial, or that reasonable diligence would not have made it so available. Namisango v. Galiwango and another [1986] HCB.37

The Background of the Appeal is that;

The applicant Makubuya Enock William T/a Polly Post filed a civil suit before out of HCCS No.534 of 2012. seeking for compensation of the machines lost as a result of the economic loss caused by the Respondent (UMEME)

The High court ruled in favor of the applicants thus forwarding the matter to the Electricity Disputes Tribunal (EDI) for evaluation of the applicants evidence.

The applicant obtained invoices detailing the value of the and monetary worth of the machines.

During the proceedings before the EDI, the respondent applied to the Court of Appeal (COA) to stay proceedings which application was granted.

The applicant then applied to the supreme court under Section 98 of the Civil Procedure Act, and Rules 2(2), 42 and 43 of the Supreme Court (Judicature (Supreme Court Rules) Directions, seeking orders among others that,

The Supreme court allow him adduce fresh evidence in form of;

(a) ruling and proceeding before The Electricity Disputes tribunal arising out of HCCS No.534 of 2012.

(b) A valuation report and invoices from M/s Mok Associated certified public accountants on the value and worth of the machines procured.

The Issues raised on whether the learned Judge should recuse himself from the case due to the conflict of interest of Justice Opio Aweri's a father to an employee of the respondent.

court went at length to deliberate on the matter of Judicial recusal and that its discretionary not mandatory

court ruled referring to the case of Professor Isaac Newton Ojok vs Uganda - SCCrA No. 33 of 1991',

"that in order to find whether a Judicial officer was biased, it is necessary to consider whether there's a real likelihood of bias by considering whether the Judicial officer labored under pecuniary, proprietary or hindered Interest.

After he has passed that test, then it may be necessary to verify whether a particular judicial officers' act or conduct satisfied reasonable persons that the court was impartial and unbiased'

court thus dismissed that application to have Justice Opio Aweri recused by finding the application misconceived.

On the matter of Introduction of new evidence.

Court ruled that, the evidence the applicant seeks to introduce should be new evidence and therefore evidence available at the time of trial and during the hearing of the first appeal (before the court of appeal) cannot be categorized as new evidence.

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The Law on additional Evidence by Court.

Courts have in a number of cases ruled on when should an applicant add evidence as seen in the following cases,

Supreme Court in Makubuya Enock William T/a Polly Post v. Bulaim Muwanga Klbirige T/a kowloon Garment Industry, Civil Application No. 133 of 2014 and in Hon. Bangirana Kawoya v. National Council for Higher Education Misc. Application. No. 8 of 2013 where it held:

A summary of these authorities is that an appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, which include:

1. Discovery of new and important matters of evidence which, after the exercise of due diligence, were not within the knowledge of, or could not have been produced at the time of the suit or petition by, the party seeking to adduce the additional evidence;

2. It must be evidence relevant to the issues:

3. It must be evidence which is credible in the sense that it is capable of belief;

4. The evidence must be such that, if given, it would probably have influence on the result of the case, although it need not be decisive;

5. The affidavit in support of an application to admit additional evidence should have attached to it, proof of evidence sought to be given;

6. The application to admit additional evidence must be brought without undue delay.

Furthermore, courts have held in Karmali Tarmohamed and Another v. T.H. Lakhani and Co. [1958] EA 567, and Namisango v. Galiwango and another [1986] HCB.37

that except on grounds of fraud or surprise,

the general rule is that an appellate court will not admit fresh evidence, unless it was not available to the party seeking to use it at the trial, or that reasonable diligence would not have made it so available.

It is an invariable rule in all the courts that if evidence which either was in the possession of parties at the time of a trial, or by proper diligence might have been obtained, is either not produced, or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by the granting of a new trial

By

Waboga David

UCU LLB4